Activists in Calif. challenge medical malpractice cap

Medical journals and healthcare publications may soon notice more readers taking deep research dives into their archives looking for old studies, reports and articles on defensive medicine. That's because California's landmark 1975 Medical Injury Compensation Reform Act—which limits pain and suffering damages in medical malpractice lawsuits to $250,000—is coming under fire from two fronts.

The Consumer Watchdog organization and “medical negligence survivors” are working to get the Troy and Alana Pack Patient Safety Act, a ballot initiative, on the November ballot. Named after the children killed in a 2003 accident, the measure would require hospitals to subject physicians to random drug and alcohol testing, require mandatory testing after an unexpected death or serious injury, and adjust the $250,000 cap for inflation. That would raise the cap to $1.1 million. It needs to get about 750,000 signatures to get on the ballot.

J.G. Preston, press secretary for the Consumer Attorneys of California, says the state trial lawyers' association hasn't taken a formal position on the proposed ballot question. He said his group is seeking to legislatively “modernize” MICRA, including adjusting the cap for inflation.

“If $250,000 was fair in 1975, the equivalent amount adjusted for inflation should be fair today,” Preston said.

In a video, Brian Kabateck, president of the CAOC, declares that the “Consumer Attorneys of California is determined to change this law this year.”

The California Medical Association, however, is fighting back, arguing that MICRA has kept medical liability premiums in check. MICRA has been a national model for similar laws in many other states limiting malpractice lawsuits.

“California's critical MICRA protections are a national success story, safeguarding patients and their access to care for almost 40 years,” the CMA stated on its website. “Trial lawyers are backing risky reforms that would impede the ability to provide critical care for California's most vulnerable citizens.”

There is no good evidence, however, that damage caps have resulted in lower healthcare costs for consumers.

A new Health Affairs report on defensive medicine adds more fuel to the debate. Researchers at the Center for Studying Health System Change used responses from the Center's 2008 Health Tracking Physician Survey to compare physicians' level of concern over being sued for malpractice with their patients' Medicare claims from 2007-2009.

When treating patients for chest pain, headache or lower back pain, doctors with a higher level of concern for malpractice were more likely to order imaging tests or refer patients to the emergency department. While this may seem obvious, the researchers found that the presence of malpractice caps was associated with greater use of some of these services.

“This counterintuitive finding might reflect a problem of reverse causality—that is, a high prevalence of malpractice concern (and defensive medicine) among physicians might make a state more likely to adopt a damages cap,” according to the report.

Whatever the cause, Californians may want to steel themselves for an advertising blitz of messages educating them on the benefits and evils of caps in the months to come.